Sonus End User License Agreement

Sonus End User License Agreement

1. License.

Subject to Customer’s compliance with the terms of this EULA (including payment of all applicable fees), Sonus grants Customer a nonexclusive, perpetual, nontransferable license to use the Product object code solely for its internal business purposes with the Hardware Product with which it is was first supplied. Customer may not permit use of the Product by another party (including but not limited to network, remote computing services or timesharing use) without the prior written consent of Sonus; provided, however, that Customer may use the Products to provide voice, fax, data, video and other communications management services to those clients of Customer that obtain such services from Customer under the provisions of a separate communications services agreement as part of Customer’s business. Customer may reproduce one copy of the Products solely for back-up purposes. Customer may not copy, translate, modify or adapt the Products or incorporate them, in whole or any part, in any other product, create derivative works based on the Products, or license others to reproduce any copies of the Products, and may not decompile, disassemble or reverse engineer the Products, or any component thereof. The Products are licensed, not sold. Excepted as expressly licensed hereunder, Sonus (and its’ licensors) retain all rights, title and interest, including all intellectual property rights, in the Products. The Products are protected by copyright and other intellectual property laws and treaties. Customer will ensure that all proprietary notices affixed to or displayed on the Products will not be removed or modified. Software licensing information for each Product may be found in the applicable Product description; information that accompanies the Product; and in the quotation (the “Software Licensing Product Information”). Software Licensing Product Information for each Product is available upon request. Customer is not allowed to install, use, or copy any Product for which it does not have a proper license for the Product, nor obtain as applicable future updates to such Products. Third party software is licensed under the applicable third party software license and subject to such terms and conditions.

2. Non-U.S. Shipments.

Shipments to non-US destinations must comply with applicable export and import regulations. Customer is solely responsible for securing import license(s), local customs clearance and paying all duties, taxes and other charges. Customer will indemnify and hold Sonus harmless from and against claims, losses, costs, or liability, due to Customer’s breach hereof.

3. US Government Restricted Rights.

Notice - Distribution and use of products including computer programs and any related documentation and derivative works thereof, to and by the US Government, are subject to the Restricted Rights provisions of FAR 52.227-19, paragraph (c)(2) as applicable, except for purchases by agencies of the Department of Defense (DOD). If the Product is acquired under the terms of a Department of Defense or civilian agency contract, the Product is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All U.S. Government end users acquire the software with only those rights set forth herein. Manufacturer is Sonus Networks, Inc., 7 Technology Park Drive, Westford, MA 01886, USA. Unpublished - rights reserved under US copyright laws.

4. Limited Warranty.

Sonus warrants that Sonus (a) Hardware Products will be free from material defects in material and workmanship and will conform substantially to Sonus’ published user documentation as of the date of product shipment; (b) Software Products will conform substantially to Sonus’ published user documentation as of the date of Product shipment and (c) media containing Software Products will be free from material defects, in each case for a warranty period as follows from the date of shipment: for Hardware Products, twelve (12) months; for Software Products, twelve (12) months; and for media, thirty (30) days. Provided Customer gives notice to Sonus’ Technical Assistance Center (telephone number 888 391-3434) of an alleged defect during the applicable warranty period and within thirty (30) days of its discovery, Sonus’ Technical Assistance Center will notify Customer whether Sonus elects to replace the allegedly defective goods or to use commercially reasonable efforts to repair, correct or work around the problem by telephone support. Sonus will have no obligation hereunder if its tests disclose that the alleged defect is due to causes not within Sonus’ control, including alteration or abuse of the Hardware and/or Software Product. This limited warranty is void if failure of the Hardware and/or Software Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Hardware and/or Software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Sonus will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Sonus’ warranty remedy procedures. Neither these remedies nor any product support services offered by Sonus are available without proof of purchase upon request. Sonus’ sole liability, and Customer's sole and exclusive remedy, for defects, is limited to the express remedies set forth herein. Software Products are not warranted to be error free. SONUS MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT. ALL OTHER WARRANTIES AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.

5. Limitation of Liability.

SONUS IS NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, FORESEEABLE OR UNFORESEEABLE, OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF PRODUCTS, OR DOWNTIME) ARISING FROM THE SALE AND DELIVERY OF HARDWARE AND SOFTWARE PRODUCTS OR ANY OTHER ACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, SONUS’ MAXIMUM LIABILITY FOR DIRECT DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE PRICE PAID FOR THE AFFECTED PRODUCT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY EXCLUSIVE REMEDIES. NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES AND THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.

6. Termination.

Sonus may terminate this EULA if Customer fails to comply with the terms and conditions hereunder. In such event, Customer must immediately cease use of the Product and related documentation and return all copies of such to Sonus.

7. Audit.

Sonus reserves the right to audit Customer’s use of the Products no more than once annually at Sonus’ expense. Sonus shall schedule any audit at least thirty (30) days in advance. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. If such audit reveals that Customer has underpaid fees to Sonus, Customer shall promptly pay to Sonus such fees for any underpayment at the prices previously agreed for such Products. If such audit reveals that Customer has overpaid fees to Sonus, Sonus shall promptly credit to Customer any overpayment at the prices previously agreed for such Products.

8. Miscellaneous.

This EULA (including any addendum or amendment to this EULA which is included with the Product including any third party shrink wrap licenses attached or specified) is the entire agreement between Customer and Sonus relating to the Products and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Customer may not assign or transfer its rights hereunder. This EULA and the rights and obligations of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application hereunder. The failure of either party to enforce any of the terms hereof will not be construed as a waiver of future enforcement of that or any other term. “Products” or “Software Products” means software products offered for sale by Sonus. “Hardware Products” mean hardware products offered for sale by Sonus.

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